It all started when Len Bias, the second overall NBA pick of the Boston Celtics died from a cocaine overdose. Bias was the key to bringing back the Celtics to their former glory. When the Speaker of the House, Tip O’Neill returned to Boston over July 4th all he heard about was Len Bias and drugs.
When O’Neill returned to Washington, he insisted that the House pass a drug bill in four weeks. As Counsel to the Judiciary Committee, Eric Sterling played a lead role in the creation of mandatory minimum sentencing for drug crimes.
The legislation passed with no hearings. There was no impact from stakeholders. Under the legislation, a person could be convicted with no tangible evidence of actual drugs involved. All you need are witnesses who testify they saw drugs. As a result, drug crimes became easy to bring to trial and win a conviction.
What made the drug legislation even more insidious was the conspiracy aspect of the law. The conspiracy provision was added to plug a loop-hole. What it did was to make everyone charged with a drug crime subject to the conspiracy provision. Thus the lowest person in the drug chain would be charged as a conspirator. The maximum sentence that applied to the person at the top of the drug network could be applied to anyone in the drug chain. This was an unintentional feature of the law that has never been corrected because no legislator wants to be accused of being soft on drugs. Teenagers selling drugs on street corners could be sentenced to jail for 50 years or more.
The federal drug laws passed after the death of Len Bias have become a classic example of unintended consequences. The federal prison population prior to the law was around 30,000. It had grown to over 200,000 after the law. Most of those in federal prisons were for drug laws. A majority of those convicted for drug laws were also individuals of color. The drug laws, in effect, have become a legal form of racial discrimination. The prosecution of drug crimes also threatens the integrity of the courts. Prosecutors will file motions to reduce sentences if “substantial assistance” is provided by those lower in the drug chain. This has led to what is called “testalying” in the courts.
Eric Sterling, the counsel who drafted the drug legislation, now calls his efforts “the greatest tragedy of my professional life.” He is now the President of the Criminal Justice Policy Foundation and has devoted his life speaking out against the drug legislation he helped to create.
Why did the drug laws have such unintended consequences? The primary reason was that the legislation had no input from those who had insight on the likely consequences of such legislation. The legislation was rushed through as a political strategy. There are those who claim that the consequences of the legislation are what were intended. These persons claim that the intent of the legislation was to preserve white privilege.
Just imagine how our nation’s obsession with drugs might be different today if the legislation had a restorative focus rather than a punitive focus? Just imagine how often our efforts to gain political advantage have resulted in unintended consequences? Just imagine the consequences of establishing mandatory standards for the development of legislation?
* * *
“Without reflection, we go blindly on our way, creating more unintended consequences, and failing to achieve anything useful.”
– Margaret Wheatley (Author and Consultant)